Mr Mario Pantalleresco v John Beever (Aust) Pty Limited
[2022] FWC 1541
•27 JUNE 2022
| [2022] FWC 1541 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Mario Pantalleresco
v
John Beever (Aust) Pty Limited
(C2022/2124)
| COMMISSIONER JOHNS | MELBOURNE, 27 JUNE 2022 |
Alleged dispute about any matters arising under the enterprise agreement
On 1 April 2022, Mr Mario Pantalleresco (Applicant) applied to the Fair Work Commission (Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (FW Act) with John Beever (Aust) Pty Limited (JBA/Respondent). During the dispute Mr Pantalleresco was represented by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
In short, the dispute is about the proper interpretation of the stand down provision at clause 13 of the National Metal and Engineering On-site Construction Industry Award 2002 (2002 Award), which is incorporated into the John Beever (Aust) Pty Ltd Metal Engineering On-Site Construction Agreement 2017 – 2020 (Agreement) under clause 7.2. The dispute arises in the context of the Respondent purporting to stand down the Applicant on 24 and 25 March 2022, when two periods of protected industrial action were planned to occur over the last four hours of ordinary time on each day.
The Applicant contended that JBA acted unlawfully when it purported to stand him down because the Applicant could have been “usefully employed” during the mornings of 24 and 25 March 2022 and because JBA did not sufficiently relieve itself of responsibility for the stoppage of work that caused the purported stand down. The Respondent disagrees. It contended that the Applicant could not have been usefully employed and that the Agreement permitted it to stand down the Applicant in the circumstances that it did.
The parties agreed that I should answer the following questions:
1. Could the Applicant have been usefully employed by the Respondent on 24 and 25 March 2022?; and
2. If he could not have been usefully employed, was the lack of useful employment “because of” one or more of the permissible reasons listed in clause 13 of the Award?
For the reasons that follow I answer the question:
a) One in the negative; and
b) Two in the affirmative
That is to say, I am satisfied that the Applicant could not be usefully employed and there was a stoppage of work for which JBA was not responsible.
Jurisdiction
Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.
In the present matter the clause in the Agreement dealing with dispute settling procedures is cl 32. It provides as follows:
“32.1 . The parties to this Agreement agree that any dispute over matters arising under this Agreement or in relation to the National Employment Standards should be resolved following the disputes procedure outlined below:
(a) The Employee/s concerned must first meet and confer with their immediate supervisor and genuinely attempt to resolve the dispute. The Employee/s may appoint another person to act on their behalf, including an Employee Representative.
(b) If the matter in dispute cannot be resolved under clause 32.1.1 (a), the Employee/s concerned must meet with more senior management. The Employee/s may appoint another person to act on their behalf, including an Employee Representative.
Employee/s concerned and their Employee Representative (if applicable) shall be allowed a place designated by the Employer, a reasonable period of time during working hours to interview external advisors requested by the Employee/s concerned or the Employee Representative, in the workplace.
(c) If the matter in dispute cannot be resolved under clause 32.1.1(b), either party to the dispute may refer to matter to Fair Work Commission or the Victorian Industry Disputes Board.
32.2 The procedure shall be followed in good faith and without unreasonable delay.
32.3 If any party to the dispute fails or refuses to follow any step of this procedure, the nonbreaching party to the dispute will not be obligated to continue through the remaining steps of the procedure.
32.4 In order to facilitate the procedure in clause 32.1:
(a) The party to the dispute with the grievance must notify the other party to the dispute of the problem at the earliest opportunity;
(b) Throughout all stages of the procedure all relevant facts must be clearly identified and records; and
(c) Sensible time limits must be allowed for completion of the various stages of discussion. However, the parties must cooperate to ensure that the disputes resolution procedures are carried out as quickly as possible.”
The Respondent contended that the Commission does not have jurisdiction to hear the
matter because the dispute has not been properly brought within the dispute settlement of the Agreement. The Respondent submitted that Applicant failed to follow the dispute settlement procedure, as he did not meet with his immediate supervisor and genuinely attempt to resolve the dispute (Step 1) and then did not meet with more senior management and genuinely try to resolve to the dispute (Step 2), before lodging the application with the Commission. The Applicant disagrees and contended that his engagement with the pre-referral steps in the dispute procedure was sufficient to allow the application to be determined by the Commission.
The facts relating to the dispute were as follows:
a)At 8:23 am on 25 March 2022 Mr Terzic sent an email[1] on behalf of the Applicant to JBA. The email was addressed to Mr Craig Nicholas, Resource Manager, Mr Alberto Sanchez, Operations Manager and Mr Steve Meilak, Leading Hand for the Respondent.
The email contended that:
i.JBA’s purported stand down of 24 and 25 March 2022 was unlawful and notified JBA of the dispute under the Agreement settlement procedure.
ii.the Geelong Site Workers could have been usefully employed and that JBA could have some responsibility for the stoppage of work due to the way it dealt with Boral.
iii.JBA bears the onus of showing that it was not responsible for Boral declaring that JBA’s work could not happen on the Geelong Site.
Mr Terzic then outlined the relevant part of the dispute settlement procedure, namely clause 32.1(a), which provides for Step 1 and requested that JBA arrange a meeting with the Applicant and his immediate supervisor by no later than 11:00am on the same day.
In the email Mr Terzic stated that he was instructed by the Applicant that his immediate supervisor would be Mr Meilak or Mr Nicholas, both of whom were recipients of the email.
b)At 12:43 pm on the same day, Mr Terzic sent a follow-up email[2] to JBA. The email was again addressed to Mr Nicholas, Mr Sanchez and Mr Meilak but also included Mr Jose Sorto, Executive General Manager, and Andrew Ermer, Workplace Relations Consultant.
The email stated that the relevant personnel from JBA had not responded to the Applicant’s request to participate in Step 1 of the dispute procedure (i.e., a meeting with the Applicant’s immediate supervisor). Mr Terzic contended that the Respondent’s failure to reply to his previous email within 4 hours and 20 minutes constituted an “unreasonable delay” for the purposes of cl 32.3 of the Agreement. Mr Terzic asked that JBA acknowledge the email and the dispute by 2:00 pm on that day. Further, Mr Terzic stated that if JBA did not respond by close of business that day then he could enlist cl 32.3 of the Agreement and skip the steps of the dispute resolution procedure and make an application to the either the Commission or the Victorian Industry Disputes Board.
c)At 8:23 pm on the same day Mr Sorto replied to Mr Terzic by email.[3] Mr Sorto began by explaining that he was in Perth and had only now had the opportunity to review Mr Terzic’s request. Mr Sorto said that he would respond more comprehensively in the next week when he would have a proper opportunity to do so. Mr Sorto went on to state that JBA was only provided with Boral’s direction just before 5:00 pm on 23 March and that without delay at 5:27 pm, JBA advised the Gelong Site Workers that they were being stood down. Mr Sorto further stated that it was the continued industrial action planned by the AMWU which prevented JBA employees from being usefully employed at the Geelong Site and that it was absurd for the AMWU to suggest that JBA might be to blame for Boral’s direction of 2 non-working days. Mr Sorto reiterated that there was no useful work to be performed at the Workshop and that any suggestion to the contrary was ill-informed and misconceived. Mr Sorto also contended that the timeframes which Mr Terzic had provided JBA to schedule meetings were unreasonable.
By reason of the contents of the emails referred to above, I am not attracted to the Respondent’s jurisdictional objection. The Respondent does not come to the matter with ‘clean hands’. Of critical importance is the fact that Mr Terzic stated that he was instructed by the Applicant that his immediate supervisor would be Mr Meilak or Mr Nicholas, both of whom were recipients of the email. Mr Terzic was attempting Step 1. However, neither Mr Meilak nor Mr Nicholas ever responded to the request.[4] The Applicant’s representative raised the matter with the Applicant’s supervisor and sought to confirm who the matter should be raised with. Both Mr Meilak and Mr Nicholas discourteously ignored the request for confirmation. Neither did they explain their failure to respond. Mr Meilak and Mr Nicholas did not even give evidence before me. I reject the jurisdictional objection.
The Agreement
The Agreement was approved by the Commission on 27 September 2017[5]. It commenced operation on 4 October 2017 and passed its nominal expiry date on 30 June 2020.[6] A variation to the Agreement was approved by the Commission on 17 February 2021 and its nominal expiry date was extended to 30 June 2021.[7]
The Agreement covers JBA and its employees who are engaged in the classifications contained in clause 13.0. The Agreement also covers the AMWU.[8]
It is common ground that the parties to the dispute are covered by the Agreement.
Relevantly, clause 7.2 of the Agreement provides that,
“The provisions of the National Metal and Engineering On-Site Construction Industry Award 2002, as varied, ("the 2002 Award") are incorporated into and form part of this Agreement.”
Clause 13 of the 2002 Award provides that,
"The employer may deduct payment for any day upon which an employee cannot be usefully employed because of any strike by or participating in any strike by members of the union; or because of any strike by any members of the union employed by the employer; or because of any strike by or participation in any strike by any other union, organisation or association or by any branch thereof or by any members thereof who are employed by the employer; or because of any stoppage or (sic) work for any cause, including breakdown of machinery or failure or lack of power, for which cause the employer is not responsible.”
Substantive hearing
At the substantive hearing on 2 June 2022,
a)the Applicant was represented by Mr Barry Terzic, Industrial Officer of the AMWU, and
b)The Respondent was represented by Mr Steven Amendola, Partner at Kingston Reid, assisted by Mr Peter Willink, Associate at Kingston Reid.
In advance of the substantive hearing the parties filed material. For completeness I set
out below the documents relied upon by the parties. I have had regard to all of this material in coming to this decision.
| Exhibit | Document title | Document date |
| 1 | Form F10 | 1 April 2022 |
| 2 | · Variation/Enterprise Agreement | 17 February 2021 |
| 3 | Applicant’s Outline of Submissions | 28 April 2022 |
| 4 | Witness Statement of Mario Pantalleresco | 28 April 2022 |
| 5 | · Attachment A | 3 December 2021 |
| 6 | · Attachment B | 22 December 2021 |
| 7 | · Attachment C | 22 December 2021 |
| 8 | · Attachment D | 14 February 2022 |
| 9 | · Attachment E | 16 February 2022 |
| 10 | · Attachment F | 22 February 2022 |
| 11 | · Attachment G | 14 March 2022 |
| 12 | · Attachment H | 18 March 2022 |
| 13 | · Attachment I | 25 March 2022 |
| 14 | · Attachment J | 23 March 2022 |
| 15 | · Attachment K | 23 March 2022 |
| 16 | · Attachment L | 29 March 2022 |
| 17 | · Attachment M | 1 April 2022 |
| 18 | Respondent’s Outline of Submissions | 12 May 2022 |
| 19 | Witness Statement of Jose Sorto | 12 May 2022 |
| 20 | · JS-1 | 18 March 2022 |
| 21 | · JS-2 | 25 March 2022 |
| 22 | · JS-3 | 28 March 2022 |
| 23 | · JS-4 | 30 March 2022 |
| 24 | · JS-5 | 30 March 2022 |
| 25 | Witness Statement of Alberto Sanchez | 12 May 2022 |
| 26 | · AM-1 | 23 March 2022 |
| 27 | · AM-2 | 23 March 2022 |
| 28 | · AM-3 | 30 March 2022 |
| 29 | Applicant’s Submissions in Reply | 26 May 2022 |
| 30 | Applicant’s Reply Statement | 26 May 2022 |
| 31 | Respondent’s Supplementary Submissions | 1 June 2022 |
At the hearing Mr Pantalleresco not required for cross-examination. Both Mr Sanchez and Mr Sorto were required for cross-examination by the Applicant.
Uncontested facts
The following matters were either agreed between the parties or not substantially contested. Consequently, I make the following findings of fact:
a)The Applicant has been employed by the Respondent for approximately 20 years as a fitter.[9]
b)The Respondent is a mechanical engineering company that provides construction, maintenance, and industrial services to clients in the manufacturing, resources and infrastructure industries. It is a company within the ACCIONA Geotech Group and operates out of a workshop base in Port Melbourne, Victoria (Workshop). [10]
c)JBA usually has a core workforce of 40 permanent employees, including the Applicant, who can be both in the workshop and onsite.[11]
d)JBA performs three categories of work. On-site maintenance, on-site construction work and workshop work (which is where parts are fabricated/machined). The workshop is a support function for JBA’s onsite work.[12]
e)Throughout his employment with JBA the Applicant has almost always worked onsite in engineering maintenance contracting, project work and engineering construction and has only ever spent a few days in the workshop.[13]
f)Over the last 5 years the Applicant has performed work for JBA at Ixon in Laverton North, a chlorine plant; Qenos, a petrochemical/plastics company in Altona; and NuFarm, an agricultural chemical/fertilisers plant.[14]
g)In or around November 2019 JBA was awarded a contract by Boral Cement Ltd (Boral) to undertake mechanical and structural steel erection work on Boral’s new cement plant in Geelong, Victoria (Geelong Site).[15]
h)Since this time the Applicant has been one of the 22 employees who normally perform construction work at the Geelong Construction Site (Geelong Site Workers).[16]
The project was to be completed in 3 stages, with each subject to a competitive tender. JBA was awarded all 3 stages and is currently in the final phase of stage 3.[17]
j)For each stage of the Boral works, JBA has been contracted by Boral to supply labour and equipment as directed by Boral. Boral has a project manager on site who determines the schedule of work to be performed by JBA.[18]
k)JBA operates under two enterprise agreements. One for construction work and the other for the workshop site and maintenance work:
i.The John Beever (Aust) Pty Ltd Metal Engineering On-Site Construction Agreement 2017 – 2020; and
ii.The John Beever (Aust) Pty Ltd Workshop and Site Maintenance Enterprise Agreement July 2017 to June 2020.
(Agreements)
l)In October 2020 the AMWU sought to commence bargaining with JBA as the Agreements had passed their nominal expiry date of 30 June 2020. JBA declined so the AMWU applied to the Commission for a majority support determination. [19]
m)However, before bargaining began, the Agreements were varied to extend the expiry dates to 30 June 2021.[20]
n)From March 2021 the AMWU and JBA engaged in enterprise bargaining.[21]
o)On 3 December 2021 the AMWU applied to the Commission for a protected action ballot, as bargaining had failed to reach terms for an agreement.[22]
p)On 22 December 2021 a protected ballot order was made by Commissioner Wilson.[23]
q)Pursuant to the protected action ballot orders employees who were to be covered by the proposed agreement were balloted and subsequently approved the action proposed in the ballots.
r)On 14 February 2022 the Australian Electoral Commission issued its declaration of results[24], which allowed for JBA employees to take protected industrial action in support of reaching an Enterprise Agreement with JBA.[25]
s)In February and March protected industrial action took place at the Geelong Site as follows:
i.A two hour stoppage from 7.00 am to 9.00 am on 22 February 2022;
ii.A four hour stoppage on the morning of 28 February 2022; and
iii.A four hour stoppage on the morning of 18 March 2022.[26]
t)On 18 March 2022 Mr Barry Terzic, AMWU Industrial Officer, sent an email[27] to Mr Jose Sorto, Executive General Manager for the Respondent, notifying JBA that AMWU members would be taking further industrial action in the form of two, four hour stoppages of work over the last four hours of ordinary time to be worked on 24 March and 25 March 2022. Mr Sorto forwarded[28] the notice to Mr Niel Cooper, Project Director for Boral, who oversees the construction of the Geelong Site.
u)On 21 March 2022 Mr Sorto called Mr Cooper to speak about the proposed industrial action. Mr Cooper said words to the effect of “The previous occasions the guys took industrial action, by the time they arrived on site, had smoko and undertook their pre-work briefing, there was only 3-4 hours of work done. It was a waste of resources to have them on site. I’m thinking of just calling those days non-productive and taking a loss.”[29]
On 22 March 2022 Mr Sanchez emailed Mr John Preston, Senior Project Manager of Boral, informing him that JBA had received notice from the AMWU of work stoppages on 24 and 25 March 2022.[30]
w)Shortly after the email Mr Sanchez and Mr Preston had a phone conversation in which Mr Preston advised that Boral was evaluating calling non-working days on 24 and 25 March 2022 at the Geelong Site.[31]
At or around 5:00 pm on 23 March 2022 Mr Sanchez spoke to Mr Preston, who advised him that Boral would be calling 24 and 25 March non-working days at the Geelong Site.[32]
y)At 5:26 pm on 23 March 2022 JBA sent an email[33] to the Geelong Site Workers. The email stated that that due to Boral issuing a direction that 24 and 25 March 2022 were to be “non-working days”, they were being stood down for these days without pay. A text was also sent out to the employees with the same message.
z)At 8:18 pm on 23 March 2022 the Applicant responded to JBA by email[34] disagreeing with the stand down because the employees could be “usefully employed”.
aa)At 6:30 am on 24 March 2022 the Applicant and 11 other Geelong Site Workers attended the Workshop instead of the Geelong Site. It was the Applicant’s intention that he would perform work from 7:00 am until the stoppage started.[35]
bb)At 6:45 am Mr Sanchez arrived at the head office next to the Workshop and saw the Applicant in the staff kitchen. Mr Sanchez asked the Applicant what he was doing there. The Applicant responded with words to the effect of “I told the guys to come here. I think there is work we could do at the workshop. I’m waiting to hear from Andrew [Mr Andrew Christie, Workshop Coordinator] to hear if there is any work and do the pre-start.”[36]
cc)Mr Sanchez said to the Applicant that he thought JBA was clear when it notified employees at the Geelong site that they were stood down because they could not be usefully employed.[37] The Applicant insisted that there was useful work that they could perform.[38]
dd)Mr Sanchez left and returned to the kitchen with Mr Christie. They advised the Geelong Site Workers that there was no work available in the Workshop as there were already two workers cleaning it and that, therefore, they could not be usually employed. The Applicant continued to disagree and insisted that they could be usefully employed.[39]
ee)At or around 7:15 am the Applicant left with the other Geelong Site Workers.[40] The Applicant returned 4 hours later for the rally held outside of the Workshop and did not present for work on the next day.[41]
ff)At 8:23 am on 25 March 2022 Mr Terzic sent an email[42] to JBA on behalf of the Applicant. The email contended that JBA’s purported stand down of 24 and 25 March 2022 was unlawful and notified JBA of the dispute under the Agreement settlement procedure. The email contended that the Geelong Site Workers could have been usefully employed and contended and that JBA could have some responsibility for the stoppage of work due to the way it dealt with Boral. It was further contended that JBA bears the onus of showing that it was not responsible for Boral declaring that JBA’s work could not happen on the Geelong Site. Mr Terzic outlined the relevant part of the dispute settlement procedure, namely clause 32.1(a), which provides for Step 1 and requested that JBA arrange a meeting with the Applicant and his immediate supervisor by no later than 11:00am on the same day.
gg)At 12:43 pm on the same day Mr Terzic sent a follow-up email[43] stating that JBA had not responded to the Applicant’s request to participate in Step 1 of the dispute procedure. Mr Terzic asked that JBA acknowledge the email and the dispute by 2:00 pm on that day. Further, Mr Terzic stated that if JBA did not respond by close of business then he could skip the steps of the dispute resolution procedure in the Agreement and could make an application to the either the Commission or the Victorian Industry Disputes Board.
hh)At 8:23 pm on the same day Mr Sorto replied to Mr Terzic by email.[44] Mr Sorto began by stating that he would respond more comprehensively in the next week when he would have a proper opportunity to do so. Amongst other things, Mr Sorto also stated that it was the continued industrial action planned by the AMWU which prevented JBA employees from being usefully employed at the Geelong Site and that it was absurd for the AMWU to suggest that JBA might be to blame for Boral’s direction of 2 non-working days. Mr Sorto reiterated that there was no useful work to be performed at the Workshop and that any suggestion to the contrary was ill-informed and misconceived.
On 29 March 2022 Mr Terzic replied to Mr Sorto by email[45] advising that as it seemed JBA was defending its position and that further party-party talks would not yield a resolution, the AMWU was referring the matter to the Victorian Industry Disputes Board.
jj)On 1 April 2022 Mr Terzic, on behalf of the Applicant, filed the present application in the Commission and served it on the Respondent.[46]
Principles of interpretation
The principles relevant to the task of construing an enterprise agreement were distilled in The Australasian Meat Industry Employees Union v Golden Cockerel[47] as follows:
“1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the [FW] Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”[48]
In 2017 a Full Bench of the Commission modified the above summary in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited (‘Berri’).[49] The Full Bench made the following observations:
“[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,[50] Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.[51] Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’.[52]
…
[44] There is considerable force in the Appellant’s contention that, as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect. It would seem to follow that the inclusion of a laundry allowance in Appendix 3 of the 2014 Agreement should not be regarded as superfluous or insignificant. Such an approach accords with the principles of statutory construction,[53] and, as a general proposition, the principles developed in the general law in the context of the interpretation of statutes are applicable to the interpretation of enterprise agreements. As the Full Bench observed in Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union:[54]
‘Australian Paper made the submission that no principle of statutory construction has any application to the interpretation of enterprise agreements, and relied upon the proposition stated in Golden Cockerel that the Acts Interpretation Act 1901 (Cth) does not apply to the construction of enterprise agreements in support of that submission. The submission is rejected. It does not follow from the fact that enterprise agreements are not instruments to which the Acts Interpretation Act applies that modes of textual analysis developed in the general law in the context of the interpretation of statutes are incapable of application to enterprise agreements. While it undoubtedly remains necessary in interpreting a particular instrument to pay attention to the peculiar characteristics of that instrument, it is equally the case that there has been a convergence in the approach taken to the interpretation of statutes, agreements and other types of instruments - in particular, in the emphasis on the objective ascertainment of the instrument’s purpose and the move from textual to contextual interpretation. Additionally, many of the grammatical aides to the interpretation of statutes are equally applicable to other types of instruments. In the High Court decision in Royal Botanic Gardens and Domain Trust v South Sydney City Council, Kirby J said “... it would be indefensible for this Court, without good reason, to adopt a different approach in the ascertainment of the meaning of contested language in a contract from the approach observed in respect of legislation”. We therefore do not consider that Golden Cockerel should be taken as an exhaustive statement of the means by which the text of an enterprise agreement might be construed.’ (references omitted)
…
[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided,[55] and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.[56] A consequence of such an approach may be that some principles of statutory construction have less force in the context of construing an enterprise agreement. For example, in Shop, Distributive and Allied Employees’ Association v Woolworths Limited,[57] Gray ACJ held that the presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute, applied with less force in the context of an enterprise agreement:
‘Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.’[58]
[47] We acknowledge that the fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. But it is also relevant that the instrument being interpreted in these proceedings is an enterprise agreement made pursuant to Part 2-4 of the FW Act and, as observed by White J in National Tertiary Education Union v La Trobe University,[59] it may be inferred that such agreements are intended to establish binding obligations:
‘The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of [the disputed clause in the agreement]’.[60]
[48] Of course his Honour’s observation does not mean that an enterprise agreement may not include ‘matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements’[61] – so much is clear from Reeves v MaxiTRANS Australia Pty Ltd.[62] The fact that the 2014 Agreement is an enterprise agreement made pursuant to Part 2-4 of the FW Act is also relevant to the weight to be given to evidence of prior negotiations, a point to which we shall return shortly.
…
[60] It seems to us that there is an ambiguity in the 2014 Agreement regarding the laundry allowance referred to in Attachment 3. In particular, it is unclear in what circumstances the amount specified is to be paid and to whom. The frequency with which any such payment is to be made is also unclear.
[61] Having identified ambiguity it is permissible to consider evidence of the surrounding circumstances as an aid to the task of interpreting the agreement. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (Codelfa):[63]
‘… evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract where it has a plain meaning.’[64]
[62] The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties and the subject matter of the contract. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. As Mason J observed in Codelfa:
‘… when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of contract, except insofar as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting.’[65]
[63] As noted in Golden Cockerel, evidence of relevance to the objective framework of facts will include:
(i)evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii)notorious facts of which knowledge is to be presumed; and
(iii)evidence of matters in common contemplation and constituting a common assumption.
[64] As to category (i), evidence of prior negotiations will be admissible – but only for a defined purpose. As Mason J observed in Codelfa:
‘Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parole evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.’[66]
[65] Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. So much is clear from the oft-quoted statement of Madgwick J in Kucks v CSR Limited:[67]
‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’
…
[88] The diversity of interests involved in the negotiation and making of enterprise agreements warrants the adoption of a cautious approach to the admission and reliance upon evidence of positions advanced during the negotiation process. As Rares J recently observed, in Australian International Air Pilots Association v Qantas Airways Limited:[68]
‘Substantially, the Act provided that the agreement was a tripartite document between a body of employees, a corporation with numerous officers and an industrial association. The involvement of so many individuals in the formation of the agreement re-emphasises the importance of approaching the construction of that document in accordance with the principle of objectivity. It is important, in doing so, to be cautious and bear firmly in mind the fact that the agreement was formed by a diversity of persons who had sought to protect their differing interests by various formulations of words in it. Those disparate intentions cannot be determinative of the proper construction to be given to the words chosen. In Health Services Union v Ballarat Health Services [2011] FCA 1256 at [79], Gray J said:
“In the days when an award might be negotiated between a union and an employer, and made by consent, the existence of a common understanding between the union and the employer as to the meaning of terms might have had some role to play in their construction. Whatever were the terms of such an agreement, and whatever their meaning was, those terms were imposed upon the employees who became bound by the award. In the current era, most industrial instruments are required to be put to a vote of the employees whose work will be covered by them, before they can be certified or approved so as to become enforceable by statute. The union and the employer who negotiated the terms might have had a common understanding of the meaning of them, but that understanding might not have been shared by all or some of the employees who voted for the operation of the agreement. They may have been entirely ignorant of the common understanding. In those circumstances, the occasions on which it can be said that a party to an agreement who entered into it on a common understanding should not be allowed to resile from that understanding will be rarer than they have been in the past.”’
…
[101] The admissibility of the post-contractual conduct as an aid to the construction of a contract is a somewhat vexed issue, in respect of which no clear line of authority has emerged.
[102] Some early High Court authority permitted the admissibility of post-contractual conduct as an aid to construction.[69] But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible.[70]
[103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner,[71] a majority of the High Court adopted the ‘general principle’ that ‘it is not legitimate to use as an aid to the construction of [a] contract anything which the parties said or did after it was made’. Of course, the expression ‘general principle’ is itself somewhat ambiguous, as Campbell JA observed in Franklins Pty Ltd v Metcash Trading Ltd (Metcash):[72]
‘It might mean that it is a principle that applies in all cases, or that it is a principle that usually applies, though perhaps being subject to exceptions.’
[104] As Allsop P observed in Metcash (at [6]), ‘much ink has been spilt over the last 30 years on this topic’. There is a daunting array of intermediate appellate court judgements on the admissibility of post contractual conduct,[73] but no clear consensus appears to have emerged.
[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd[74] gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:
‘… will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.’[75]
[106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding – a settled interpretation accepted by the parties.
[107] We also note that in Spunwill[76] Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd[77]:
‘In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.’”.
The Full Bench in Berri then modified the summary set out in Golden Cockerel in light of the observations made in the course of their decision.
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”[78]
I adopt the Berri principles. Consequently, it is necessary to,
a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement,
b) determine whether the Agreement has a plain meaning,
c) review the text of the Agreement as a whole,
d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,
e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement,
f) not adopt an overly technical approach to the interpretation of the Agreement, and
g) not contradict the plain language of the Agreement.
Applicant’s Submissions
On 28 April 2022 the Applicant submitted that,
“… The wellspring of the FWC’s powers in this matter is the FW Act. The initial point of reference is Part 6-2, Div 2, which allows the FWC to deal with disputes by arbitration if such is enabled by an enterprise agreement. This state of affairs exists under cl 32.0 Dispute settlement procedure in The John Beever (Aust) Pty Ltd Metal Engineering On-Site Construction Agreement 2017 – 2020 (Agreement) which provides a process for resolving disputes “over matters arising under … [the] Agreement”.
As for the process in the procedure, at cl 32.1, it firstly requires the disputing parties to attempt to resolve disputes in the workplace, and this might be considered a condition precedent for the applicant making this application to the FWC. Based on the Statement, especially at [43-44] and attachment “L”, it is submitted that these preliminary requirements are met. From there, under cl 32.1(c), the dispute was referred to the FWC.
It is noted that in the Agreement, the FWC is not the sole body that can deal with disputes, there is also the Victorian Industry Disputes Board (Board) (see cl 32.5). As it turns out, this is a misnomer, and such a body does not exist, so, it is submitted that this then enlivens cl 32.5.5 which brings the issue into the FWC’s remit. From there, cl renders to the FWC the power of arbitration, subject to cl which deals with an irrelevant limitation.
The FWC’s power to decide conclusively all matters of fact and law then arise as a private arbitrator.
Along the way here, reference should be made to the FW Act, Part 3-5. Here, there is what may be described as a universal default stand down provision. However, this provision only applies where there is no stand down provision in a contract or enterprise agreement.
10.In this matter, by cl 7.2 of the Agreement, the National Metal and Engineering On-site Construction Industry Award 2002 (Award) is incorporated into the Agreement, and in the Award cl 13 reads:
13. STAND DOWN PROVISIONS
The employer may deduct payment for any day upon which an employee cannot be usefully employed because of any strike by or participating in any strike by members of the union; or because of any strike by any members of the union employed by the employer; or because of any strike by or participation in any strike by any other union, organisation or association or by any branch thereof or by any members thereof who are employed by the employer; or because of any stoppage or (sic) work for any cause, including breakdown of machinery or failure or lack of power, for which cause the employer is not responsible.
11.The above Award provision thus becomes a term of the Agreement, susceptible to the Agreement’s dispute settlement procedure and it governs the relevant rights of the parties.
Stand downs in general
12.While the stand down provision under consideration in this application is not the same as that in the FW Act, it is submitted that the key terms and concepts embodied in the FW Act’s stand down provision, other award-based provisions and those in the above Award term are similar in many respects and precedents may readily transpose.
13.Moreover, the rationale for stand downs is neatly encapsulated in this passage from Re Distilleries Award 1977
I do not accept the contention ... that standing down employees without pay should be an employer’s right if that were the most convenient way of avoiding economic loss. The concept that it is management’s prerogative to use labour at will has no place in western society for many decades. It has been replaced by the concept that the use of the labour of human beings is a privilege accorded to management on deemed terms. One of those terms is that reasonable security of earnings be assured to the labourer…
There may, however, be circumstances when both the employer and those employed would want to avoid the extreme measure of terminating employment. It is for this situation that stand-down provisions should exist and should contain adequate safeguards…
14.It is submitted that the purpose of stand down provisions is to provide respite to employers when an event, for which they are not responsible, prevents their employees from having useful work. Where there is permanent employment, ordinarily, the wage-work bargain requires that the employer provide paid work during ordinary hours to those employees ready, willing and available for work. A stand down term allows for a temporary suspension of that arrangement, but only in limited circumstances—stand downs are not to be facilely availed by employers purely for their convenience.
Summary of events
15.Based on the Statement, it is submitted that the events behind the dispute arose during enterprise bargaining in the respondent’s engineering business. The unionised employees of the respondent, mostly members of the Australian Manufacturing Workers’ Union (AMWU), had been seeking terms for an agreement to replace the Agreement and a counterpart agreement that applies to the respondent’s workshop and onsite maintenance operations.
16.The applicant is the AMWU shop steward for the respondent’s union member employees.
17.AMWU efforts in bargaining began in 2020, but mainly due to COVID- 19 issues, bargaining proper did not start until March 2021. Then, throughout that year, little progress was made. Eventually, in late 2021, the AMWU sought, and obtained, under the FW Act, Part 3-3, Div 8, a protected action ballot order. In February 2022, the resultant ballot authorised various forms of employee claim action, and through February and March 2022, actions were taken.
18.Over the course of the above, for the most part, the applicant was deployed to a construction project, the building of a cement works for Boral Cement Limited (Boral) in Geelong. As well as the applicant, the respondent had from 25 to 70 (approx.) employees working at this site over the last couple of years.
19.The stand down occurred on 24 and 25 March 2022. On 18 March 2022, the AMWU notified the respondent of two 4-hour stoppages on 24 and 25 March 2022 respectively that were to occur over the last half of ordinary hours. The day before the stoppages were to occur, at 5.26pm, the respondent emailed the applicant and other employees at the Boral site to say that they were stood down for all of 24 and 25 March 2022.
20.The applicant responded to that email by email, just under 3 hours later, to contest the purported stand down, contending that he had useful work for the mornings of 24 and 25 March 2022 (in the afternoon he would be on strike).
21.On the morning of 24 March 2022, ahead of the normal start time, the applicant and 11 of his colleagues turned up ready for work at the respondent’s workshop in Port Melbourne. There, the applicant conferred with the respondent’s relevant personnel about being allocated alternative work, i.e. work other than that at the Boral site which had been cancelled. The respondent declined this offer, and no alternative work was performed on either 24 and 25 March 2022. For this lost 8 hours of work (another 8 hours were lost due to the strike; this is not contested), the applicant was eventually paid, but his RDO balance had an 8-hour reduction; this is contested.
The crux of the dispute
22.It is posited by the applicant that the respondent cannot rely on the Award stand down term primarily because he could have been usefully employed during the stand down periods.
23.There is another point of challenge, namely, whether the stoppage of work came about in a way over which the respondent is not responsible.
Usefully employed
24.In Re Carpenters and Joiners Award, the majority said this on the term “usefully employed” in the context of a stand down:
In circumstances where it is reasonable to anticipate that consequent upon the cessation, of the strike by reason of which cl. B10 is brought into operation, or for some other reason, production in the employer's business will be resumed within a time that will permit continuance of relevant production—
(a) An employee cannot be said to be one who cannot be usefully employed if there is useful work available the performance of which is within the terms of his contract of employment, although work of the class upon which he is usually employed or was last employed is not available. In cases where a man is employed to work generally as a carpenter under the award then the work within the terms of his contract of employment would extend to all the aspects of the work of a carpenter defined in cl. B2 of the award.
(b) (i) Where useful employment is not available for all the employees normally engaged in a class of work performed in some aspect of production but is available for one or more of such employees it cannot on that ground be said with respect to any particular employee that he cannot be usefully employed.
(ii) When in the circumstances referred to in the last preceding sub- paragraph some employee or employees are engaged to perform the available useful work then it can be said with respect to the others that they cannot be usefully employed.
(iii) Where in the circumstances referred to in sub-par. (b) (i) a selection of particular employees out of the number normally employed on the class of work which is available to perform such work as is available would cause an industrial dispute calculated to cause material disruption of the conduct of the employer's business, then it can be said of each and all the employees concerned that they cannot be usefully employed. The expression “usefully employed” necessarily connotes that by the employment in contemplation there will be a net benefit to the employer's business by reason of the performance of the particular work done. If the performance of the work done will prejudice the conduct of the employer's business then it is not useful to him although the work in itself would probably, to some extent, contribute to production.
(c) Where the work available for performance by an employee would engage him for less than a full day's work then, for the purposes of cl. B10, he is an employee who as to that day cannot be usefully employed. Clause B10 is concerned with deductions of payment for “any day upon which” an employee cannot be usefully employed. It proceeds on the assumption that deductions are to be on a daily basis. The deduction contemplated is the amount payable for a day's work. The clause is not concerned with employment for part of a day.
(d) Where work which may be usefully performed by an employee on a particular day can be performed on that day notwithstanding that other workers are on strike, it cannot be said that that employee cannot be usefully employed on that day by reason of the fact that if he does so perform it the amount of work available to be performed on the day of resumption of work on the cessation of the strike will thereby be reduced.
We make the following further observations.
One factor to be gathered from the evidence is that in the conduct of the operations of the Housing Commission it is necessary for it to have on hand, for use as required, various aids to production such as duckboards and pallets.
From time to time those already made have to be repaired. It is therefore frequently arguable that when other work for carpenters is not available some of them may be usefully employed in making or repairing such items. It is, however, purely a question of fact in any particular case whether, in the performance of such work at a particular time, an employee can be usefully employed. The question would be determined by reference to the circumstances of the employer's business at the time, including the probable extent and duration of the strike, the degree of the employer's requirement in the relevant future of additional duckboards or pallets or of such in good repair and other matters going to the usefulness to an employer of having the work done on the day in question. It cannot be said that an employee cannot be usefully employed on a particular day if there is a day's work available for him which, if performed on that day, will, having regard to the probable course of the employer's business, contribute beneficially to the reasonable and efficient conduct thereof.
25.Before the question of “usefully employed” is examined, there is a confounding issue that arises in the present case which is thrown up by the above passage at para (c). Like in the clause before the Court, the Award stand down term allows for stand downs “for any day upon which an employee cannot be usefully employed”. It is noted that this expression “for any day” precludes part-day stand downs. This can be of significant benefit to an employee for it means once work has started on a day, a stand down can no longer occur on that day, and, in this respect, compare the FW Act, s 524(1), which instead says “during a period”.
26.The relevant stand downs in this matter were for half days. So, it might be argued that the Award stand down provision could not be engaged at all because the stand downs did not extend for the whole day—the second half of the relevant days were periods of employee claim action. However, it could be said that the purported stand downs were to cover the entire 2 days, and if they are found to be unlawful, the applicant can claim that the misapplication of the Award term means compensation can be sought for 2 days, but he then must accept a deduction for the employee claim action period (8 hours in total) under the FW Act, s 470(1).
27.Returning focus again to usefully employed, it is submitted that the respondent bears the onus of showing the applicant could not be usefully employed. Nonetheless, the applicant has given rather a large amount of evidence of alternative duties he could have performed in the stand down period, and the sorts of things he testifies to are analogous to the duckboards and pallets referred to in Re Carpenters and Joiners Award. It is contended that a fuller exposition of this issue is more appropriately given once all of the evidence is in.
The respondent is not responsible
28.To invoke a stand down over a work stoppage, the employer must not be responsible for the cause of the stoppage. Again, the applicant submits the onus falls to the respondent to make out this part of the case.
29.While the Award clause is replete with references to strikes, and in the background to the stoppage there were strikes, these cannot be relied on for the stand down. Nonetheless, the respondent is prima facie entitled to rely on Boral’s refusal to have work done on site on 24 and 25 March 2022. In fact, there is a close parallel in the present matter and that which happened in The Australian Workers’ Union v Brockman Engineering Pty Lt where employees of contractors working onsite at the Geelong oil refinery were stood down after the oil refinery operator—not the employer of the stood down workers— told the contractors not to supply labour due to anticipated industrial action by the oil refinery operator’s employees. Like here, at the oil refinery, the anticipated industrial action (which was cancelled in the end) was not the basis for the stand down, but rather, it was the oil refinery operator’s direction not to come in for work.
30.The issue the applicant puts forward on this point is the extent to which the respondent engaged with the applicant, the AMWU and Boral to look at how the situation with notified strikes could be dealt with other than having no work at all performed at the Boral site on the relevant days. In this regard, what is somewhat suspicious is the last minute notification of the stand down when the stoppages were notified the best part of a week earlier—what happened in the intervening period?
31.It is noted that in Textile, Clothing and Footwear Union of Australia v Emu (Aus) Pty Ltd, the employer, a manufacturer of sheepskin products, faced an interruption to productive operations due to the delay of a shipping container from China which held sundry items used in production. In Textile, Clothing and Footwear Union of Australia, it was ruled that the employer did not do enough to ensure that it had the necessary sundry items in stock, and therefore, the stand down was unlawful.
32.It is submitted that the sort of examination conducted by Fair Work Australia in Textile, Clothing and Footwear Union of Australia in assessing the employer’s contribution to cessation of productive work should be replicated in this application, and unless the respondent can show that it made a genuine effort to avert what eventually transpired as the cause of the stoppage, then the stand down should be ruled as unlawful.
Conclusion
33.For the foregoing reasons, the Question should be answered “yes” and the FWC should issue a decision requiring an 8-hour re-crediting of the applicant’s RDO balance.”
Respondent’s Submissions
On 12 May 2022 the Respondent submitted that,
“…JBA is a mechanical engineering company that provides construction, maintenance and industrial services to clients in the manufacturing, resources and infrastructure industries. JBA is a company within the Acciona Geotech Group.
In or about November 2019, JBA was awarded a contracted by Boral Cement Ltd (Boral) to perform mechanical and structural steel erection work on the construction of Boral’s new cement mixing plant in Geelong, Victoria (Geelong Construction Site).
The work grew to involve three stages, with each being subject to a competitive tender:
a.Stage 1 involved the assembly of the grinding mill, including its structure and associated mechanical installation (referred to above).
b.Stage 2 involved constructing silos.
c.Stage 3 involved construction of clinker storage mechanicals.
JBA was also contracted to perform the work in the second and third stage.
The first and second stages of work are complete and JBA is in the final stage, which is anticipated to be completed in August 2022.
The agreement between Boral and JBA is to supply labour as directed by Boral. Boral has a project manager on site who determines the schedule of work to be performed by JBA.
JBA is currently covered by two enterprise agreements, one of which is the Agreement. Both enterprise agreements (as varied) reached their nominal expiry dates on 30 June 2021.
JBA performs three categories of work, each of which are covered by the enterprise agreements. The three kinds of work are on-site maintenance, on-site construction work and workshop (which is where equipment is used to machine parts of larger assemblies and fabrications). The workshop is a support function for JBA’s on-site work.
The Applicant performs on-site maintenance and on-site construction work at the Geelong Construction Site. He has done so since 2019, when JBA first started work at the Geelong Construction Site. The Applicant would rarely, if ever, undertake work at the workshop.
10.The AMWU organised the following employee claim action in relation to a proposed replacement enterprise agreement:
a.Two-hour stoppage of work from 7am to 9am on Tuesday, 22 February 2022
b.Four-hour stoppage of work from 7am to 11am on Monday, 28 February 2022
c.Four-hour stoppage of work from 7am to 11am on Friday, 18 March 2022
d.Four-hour stoppage for the last four hours of the shift on Thursday, 24 March 2022
e.Four-hour stoppage for the last four hours of the shift on Friday, 25 March 2022.9
11.As at 24 and 25 March 2022, JBA had employees based at the following sites:
a.Boral’s Geelong Construction Site (approximately 22 employees work here)
b.Train Wash, which is a train wash maintenance facility in Cragieburn (one employee works here)
c.Port Melbourne Workshop (two employees work here, plus casuals as needed)
d.Nufarm, which is an agricultural chemical facility – maintenance works, located in Laverton North (three employees work here)
e.Quantem, which is a bulk liquid storage facility – maintenance works located in Geelong (three employees work here, plus two casuals as needed)
f.Quantem, which is a bulk liquid storage facility – maintenance works located in West Melbourne (three employees work here, plus two casuals as needed).
12.Around 80 percent of JBA’s revenue in Victoria comes from the contract with Boral to supply labour on the Geelong Construction Site. It is by far its largest contract and has the most employees located at the location.
13.JBA employees at the Geelong Construction Site were stood down on 24 and 25 March 2022. The reason that occurred is because Boral decided that those days would be non-working days after Boral became aware of proposed industrial action on those days. It notified JBA that the days would be non-working days at 5pm the day prior, Wednesday, 23 March 2022. Employees were notified that they were stood down as a result of that decision within half an hour.
14.JBA employees located at sites other than the Geelong Construction Site continued to work those two days as usual (other than the four-hour stoppages if they also engaged in the industrial action the AMWU had organised). Boral was the only client that determined its site would be non-productive on those days.
15.The Applicant’s dispute relates to JBA’s decision to stand him down on 24 and 25 March 2022. He says he could have been usefully employed those days and should therefore not have been stood down. He claims the stand down was unlawful as a result.
Relevant provisions of the Agreement
16.The Respondent agrees the relevant clause that needs to be considered by the Commission in its determination of this matter is clause 13 of the National Metal and Engineering On-site Construction Industry Award 2002 (2002 Award). Clause 13 is as follows:
13. STAND DOWN PROVISIONS
The employer may deduct payment for any day upon which an employee cannot be usefully employed because of any strike by or participating in any strike by members of the union; or because of any strike by any members of the union employed by the employer; or because of any strike by or participation in any strike by any other union, organisation or association or by any branch thereof or by any members thereof who are employed by the employer; or because of any stoppage or work for any cause, including breakdown of machinery or failure or lack of power, for which cause the employer is not responsible.
17.Clause 13 of the 2002 Award is incorporated into the Agreement by clause 7.
18.Clause 32 of the Agreement contained the dispute settlement procedure. The clause provides as follows:
32.1 . The parties to this Agreement agree that any dispute over matters arising under this Agreement or in relation to the National Employment Standards should be resolved following the disputes procedure outlined below:
(a) The Employee/s concerned must first meet and confer with their immediate supervisor and genuinely attempt to resolve the dispute. The Employee/s may appoint another person to act on their behalf, including an Employee Representative.
(b) If the matter in dispute cannot be resolved under clause 32.1.1 (a), the Employee/s concerned must meet with more senior management. The Employee/s may appoint another person to act on their behalf, including an Employee Representative.
Employee/s concerned and their Employee Representative (if applicable) shall be allowed a place designated by the Employer, a
reasonable period of time during working hours to interview external advisors requested by the Employee/s concerned or the Employee Representative, in the workplace.
(c) If the matter in dispute cannot be resolved under clause 32.1.1(b), either party to the dispute may refer to matter to Fair Work Commission or the Victorian Industry Disputes Board.
32.2 The procedure shall be followed in good faith and without unreasonable delay.
32.3 If any party to the dispute fails or refuses to follow any step of this procedure, the nonbreaching party to the dispute will not be obligated to continue through the remaining steps of the procedure.
32.4 In order to facilitate the procedure in clause 32.1:
(a) The party to the dispute with the grievance must notify the other party to the dispute of the problem at the earliest opportunity;
(b) Throughout all stages of the procedure all relevant facts must be clearly identified and records; and
(c) Sensible time limits must be allowed for completion of the various stages of discussion. However, the parties must cooperate to ensure that the disputes resolution procedures are carried out as quickly as possible.
Objections to the Commission’s jurisdiction in the matter
19.The Respondent submits that the Commission does not have jurisdiction to hear the matter because the dispute has not been properly brought within the dispute settlement of the Agreement. The Applicant failed to follow the mandatory dispute settlement procedure prior to filing the dispute in the Commission
20.The application has been brought pursuant to s.739 of the FW Act. Sub-section 739(5) of the FW Act states that.
If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
21.The Respondent submits that in order for the Commission to be empowered to arbitrate this dispute, the parties must have followed the steps of the dispute settlement procedure (DSP). Relevantly, the Applicant was required to:
a.First meet and confer with their immediate supervisor and genuinely attempt to resolve the dispute (Step 1); and
b.In the event his dispute could be resolved under Step 1, he was required to meet with more senior management (Step 2).
22.The applicant could only escalate the dispute to the Commission in the event he was not able to resolve the dispute by genuinely engaging in the first two steps of the procedure.
23.The Applicant, through Barry Terzic, Industrial Officer, AMWU, first notified the Respondent of the existence of this dispute by way of an email at 8:23am on Friday, 25 March 2022. Mr Terzic addressed his email to Craig Nicholas, Resource Manager, Alberto Sanchez, Operations Manager and Steve Meilak, Leading Hand.
24.In his email, Mr Terzic acknowledged the DSP “begins with the employees concerned first meeting and conferring with their immediate supervisor and genuinely attempting to resolve the dispute.” Mr Terzic said the meeting should occur by no later than 11am that day (i.e. within 2.5 hours of Mr Terzic sending the email).
25.At 12:43pm, Mr Terzic emailed the Respondent a second time. In his second email, Mr Terzic addressed his email to Jose Sorto, Executive General Manager of the company and Andrew Ermer, Workplace Relations Consultant (as well as the other three employees referred to above). Jose Sorto is in Perth, where the local time was 9:43am. Mr Terzic said the “relevant personnel from JBA have not responded to the request to participate in the first step to the procedure.” and purported to escalate the matter to step
26.Mr Terzic gave the company less than half of one business day to follow the DSP before purporting to escalate it to Step 2. Mr Terzic described the company’s delay as “unreasonable” and said his time limit was “sensible”. These assertions have to be determined as objectively reasonable in order for the dispute to be legitimately escalated to Step 2.
27.At 8:23pm (AEDT) (5:23pm (AWST)), Mr Sorto, the Executive General Manager of the company responded to Mr Terzic. Mr Sorto prefaces his response with an explanation that he expected to respond more comprehensively the following week once he has a “proper opportunity to do so”.
28.Mr Terzic did not respond to Mr Sorto’s email until 10:10am on Tuesday, 29 March 2022. Mr Terzic stated that he was on leave that week and that Raoul Wainwright would be taking over his duties. Mr Terzic did not provide Mr Wainwright’s contact details to Mr Sorto, nor is it clear whether he copied Mr Wainwright into the correspondence.
29.Mr Terzic advised JBA that he was escalating the matter to the Victorian Industry Disputes Board or the Fair Work Commission. Extraordinarily, Mr Terzic said his basis for doing so was:
“From your response, it seems that senior management at JBA has defended its position and further party-party talks will not yield a resolution.”
30.The Respondent submits the Applicant clearly failed to follow the dispute settlement procedure. The first step required that the Applicant meet with his immediate supervisor and genuinely attempt to resolve the dispute. That did not happen. There was no genuine attempt by the Applicant to resolve the dispute. The second step was only available to him if step 1 failed to resolve the dispute. It was not available to the Applicant when he purported to escalate the dispute to Step 2. In any event, Step 2 also required the Applicant to meet with more senior management and genuinely try to resolve to the dispute. That did not happen. Instead, he escalated the dispute to the Commission once JBA defended its position, notwithstanding senior management expressed that it had still not had a proper opportunity to consider the matter.
31.The Applicant and the Respondent were required to follow the DSP in good faith. The Applicant did not. His representative did not adhere to his own deadlines to respond. The Applicant purported to escalate the dispute to Step 2 by emailing Mr Sorto despite no conversations having occurred by that point. Mr Sorto responded and said he would be able to consider the matter further the following week. Despite that, the Applicant says that because the company defended its position, no resolution would be possible. There was no bona fide attempt to resolve the dispute.
32.The Applicant was required to act in good faith in an attempt to resolve the dispute in steps 1 and 2 of the DSP. He did not. It is clear from the objective facts that he was hellbent on notifying a dispute and dealing with the inconvenience of the terms of the DSP by merely paying them lip service in so doing.
33.Given the Applicant has failed to adhere to the DSP, the application has not been properly brought to the Commission. For that reason, the Commission lacks jurisdiction to hear the matter.
The dispute characterised
34.The Applicant has posed the following question to the Commission:
Did Mario Pantalleresco’s employer, John Beever (Aust.) Pty Ltd, act unlawfully when it purported to stand down Mr Pantalleresco during his ordinary hours in the mornings of 24 and 25 March 2022?
35.The Respondent disagrees with the question posed by the Applicant. Assuming jurisdiction, the Respondent submits the Commission should resolve the dispute by determining as follows:
Question 1: Could the Applicant have been usefully employed by the Respondent on 24 and 24 March 2022?
Answer: No
Question 2: If he could not have been usefully employed, was the lack of useful employment “because of” one or more of the permissible reasons listed in clause 13 of the 2002 Award?
Answer: Yes.
The Applicant could not be usefully employed
36.Boral contracted with JBA to provide labour for that project. JBA is in the final stage of construction, which is anticipated to be complete in August this year. JBA has 22 employees who are working on the Geelong Construction Site. In earlier stages of the project, it had up to 70 employees on site. The Applicant is one of the 22 employees who perform construction work on the Geelong Construction Site.
37.On 23 March 2022, Boral advised the Company that 24 and 25 March 2022 were non- productive days (also referred to in the evidence as non-working days). The consequence of those dates being non-productive days is that Boral did not require the Applicant, nor any other of his colleagues, to work at the Geelong Construction Site on either of those dates. As a result, there was no work for JBA employees, including the Applicant, to perform on either of those dates. In this circumstance, there was a stoppage of work, as contemplated by clause 13 of the 2002 Award.
If any party to the dispute fails or refuses to follow any step of this procedure, the nonbreaching party to the dispute will not be obligated to continue through the remaining steps of the procedure
19.Early in the following week, on Tuesday, 29 March 2022, the applicant emailed the respondent’s senior manager, noting that the respondent’s higher management was unyielding in its position on the stand down. Furthermore, with the prospect of further stand downs later in that week, it is contended that an expedited referral to the FWC (or, as then said by the applicant, the Board, which turns out to be a mistake in the Agreement—there is no such Board) was within the parameters of the procedure. Indeed, it is contended that with a red hot dispute in play, any dilatory conduct by anyone at this point would amount to “unreasonable delay”, and therefore, it is submitted that haste cannot fairly be raised as a disqualifying consideration in adherence to the procedure.
20.From then, there was both quiet and action. As stated in the statement of Alberto Mateo Sanchez, dated 12 May 2022, on 30 March 2022, the AMWU State Secretary, Tony Mavromatis met with very senior management from the respondent’s parent company, and from that, further stoppages of work were called off (averting anticipated stand downs later that week) and enterprise bargaining negotiations were to continue. That is the action.
21.The quiet was in the progress of the dispute. With the respondent on notice that a referral to the FWC or Board was soon to occur, but with nothing forthcoming from the applicant on the following day, or the next …, it is submitted that it was open to the respondent to intervene and arrange some talks to see how the stand down issue could be resolved. However, the respondent, from then on, stayed mum on this subject. It is submitted that in an overall consideration of how the dispute procedure ran at this time, and whether there was compliance, the respondent’s inactivity from 29 March 2022 to well past the close of business on 1 April 2022, when application was finally made to the FWC by the applicant counts against any complaint the respondent makes about the applicant acting precipitously. Furthermore, note that the requirement for disputants to meet in the step just before referral to the FWC, in the Agreement at cl 32.1(b), does not appear to place an onus on one or the other side to convoke a meeting; rather, it says such should occur. From this, it is submitted that the respondent’s procrastination at this time can be taken to amount to a failure by it to cooperate in the speedy conduct of the dispute (see the Agreement at cl 32.4(c)).
22.For the reasons above, the FWC should find the applicant’s engagement with the pre-referral steps in the dispute procedure sufficient and the application should proceed to the merits by the FWC now addressing the Respondent questions.
Question 1 – could the application have been usefully employed?
23.It is submitted that until the evidentiary case closes, it remains premature to attempt to answer this question. Nonetheless, there is an immediately discernible chasm in the respondent’s case, namely, how the respondent anticipated, by 21 March 2022 that there would be no work for the applicant at the Boral project on 24 and 25 March 2022,21 but it then failed to get going on finding useful alternative work for the applicant. By the time the applicant arrived at the respondent’s workshop, about half an hour before the usual start time on 24 March 2022, it is apparent that the respondent had not turned its mind to planning for something the applicant could do.
24.The above situation, along with the failure of the respondent to reasonably rebut the applicant’s suggestions as to useful work, would lead to a conclusion that the respondent took the easy way out. This is not sufficient to justify a stand down.
Question 2 – were Boral’s non-working day directions reason enough to stand down?
25.The applicant accepts that the stand down was based on Boral’s direction, and once that direction was given, there was no work for the applicant at the Boral site. This aligns with the passage in the Award at cl 13 which reads “any stoppage or (sic) work for any cause”; and, in this regard, see Australian Workers’ Union v Brockman Engineering Pty Ltd.
26.Moreover, the respondent appeared to try to find a way to assuage Boral’s concerns about the impact of the notified industrial action. There is evidence adduced by the respondent of it attempting to engage with Boral, and the principal reason for a lack of meaningful engagement appears to be attributable to Boral. That said, cross- examination may show that there was more to this than what the respondent’s evidence paints, so, again, judgment on this should be held over until after the evidentiary case has been wrapped-up.”
Respondent’s supplementary submissions
On 1 June 2022, with the consent of the Applicant, the Respondent submitted that,
“… The point it wishes to make arises out of a judgement of the Commonwealth Industrial Court in Re Carpenters and Joiners Award (1971) 17 FLR 330 (Re Carpenters) that is relied upon by the Applicant.
In Re Carpenters, the Court was asked to determine a dispute between the parties about the interpretation of a clause in the Carpenters and Joiners Award. It is apparent that the clause under consideration mirrors Clause 13 of the Award (which is in dispute in this matter in all material ways. The differences between the two clause are illustrated below for convenience:
The employer may deduct payment for any day upon which an employee cannot be usefully employed because of any strike by or
participatingparticipation in any strike by membersor memberof the union; or because of any strike by any members of the union employed by the employer; or because of any strike by or participation in any strike by any other union, organisation or association or by any branch thereof or by any members thereof who are employed by the employer; or because of any stoppageor(of) work(other than for inclementweather within the allowance prescribed by Clause Bl6 of this Division) for any cause, including breakdown of machinery or failure or lack of power, for which cause the employer is not responsible.Two passages from that decision are significant and likely dispose of this matter.
The first passage is from the joint judgement of Chief Justice Spicer and Justice Smithers and is as follows:
“(c) Where the work available for performance by an employee would engage him for less than a full day's work then, for the purposes of cl.B10, he is an employee who as to that day cannot be usefully employed. Clause B10 is concerned with deductions of payment for "any day upon which" an employee cannot be usefully employed. It proceeds on the assumption that deductions are to be on a daily basis. The deduction contemplated is the amount payable for a day's work. The clause is not concerned with employment for part of a day.”
The second passage is from the judgement of Justice Joske. Justice Joske agrees with the majority, but expresses some observations. One of those observations, which we say actually accords with the majority, is as follows:
“Since the phrase relates to a day's work, it is not sufficient that there is work for all or some employees for part of a day only and if that is the situation, employees cannot be usefully employed.”
The court’s observations about the temporal period of the “useful work” is clear; it must be for an entire day. It cannot be for a part of a day. This is fatal to the Applicant’s case.
The Applicant’s case is that there could have been duties that he could have performed from approximately 7am to 11am on each of March 24 and March 25 that would have been useful to the Respondent. The Respondent denies this. In any event, the decision in Re Carpenters highlights that whether or not there was work that could have occupied him for that part of each day has absolutely no bearing on his claim. This must be so because it was only for a part of a day. Therefore, his claim must fail on his own evidence.
The Applicant addresses this clause in paragraphs 25 and 26 of the submissions dated 28 April 2022. The Applicant appears to suggest that the excerpt of the majority judgement at paragraph 1.6 above somehow suggests Clause 13 of the Award could not be engaged at all. The basis for this submission is not clear. It appears to erroneously focus on the period of the stand down rather than that day’s wages which the employer is exempted from having to pay.
Clause 13 excludes the obligation from having to pay an employee a day’s wages in circumstances where for the day, (or any portion of it), he or she cannot be usefully employed because of one of the permitted reasons
10.On 24 and 25 March 2022, the Applicant was engaged in industrial action in the form of a complete stoppage of work for four hours. It follows that he could not have been usefully employed during at least those four hours. As a result, Clause 13 of the Award excluded the Company from having to pay wages for either of those days.
11.It must follow that the answer to the questions posed by the Respondent and agreed to by the Applicant are ‘no’ and ‘yes’.”
Consideration
Question 1. Could the Applicant have been usefully employed by the Respondent on 24 and 25 March 2022?
In Australian Municipal, Administrative, Clerical and Services Union (052V) v Helloworld Travel Limited & Viva Holidays II Limited T/A Viva Holidays[79] Deputy President Coleman made reference to the judgment of Spicer CJ and Smithers J in Re Carpenters and Joiners Award[80]. Their Honours held that the term “usefully employed” in a stand down provision in an award “necessarily connotes that by the employment in contemplation there will be a net benefit to the employer’s business by reason of the performance of the particular work”.[81] The Deputy President stated:
“The requirement that useful employment carry a net benefit to the employer’s business may be contrasted with broader concepts of ‘usefulness’ such as the utility of work for the maintenance of skills and production. Because useful work should carry a net benefit to the business, the employer’s perspective on what work is useful will be highly relevant. Further, the requirement of net benefit to the business suggests that work of some immediate or prima facie value will not necessarily be of ultimate benefit. For example, there may be no net benefit to the business of production (which might otherwise in isolation be considered ‘useful’) if there is simply no market for the products that are produced. A net benefit might not necessarily need to be an economic one, although the economic consequences of particular work for the employer are clearly relevant to whether an employee can be usefully employed.”[82]
The Deputy President found that although there was work to be to be performed during the stand down periods it did not mean that it was useful work for those employees who were stood down. “There is no rule that any available work must be shared between employees. If useful work has been assigned to one employee, a consequence may be that there is no useful work for another employee.”[83]
In the present matter, the Applicant argued that he could be usefully employed cleaning and maintaining the Workshop. Mr Sanchez gave evidence that the Workshop Coordinator informed him that there were already two permanent workshop employees who had been allocated the task of cleaning. Although this work may have been useful, it does not necessarily follow that it was useful work for the Applicant or any of the other Geelong Site Workers at that time.
The facts in this matter make it clear and I so find that there was no useful work for the Geelong Site Workers to perform. Boral’s Geelong site represents approximately 80 percent of JBA’s revenue and the majority of its blue-collar workforce in Victoria. Given that Boral issued its direction with such short notice, it was unrealistic that there would be any requirement for additional workers at the Respondent’s other sites. This work was already allocated to other employees.
The proposed work at Port Melbourne would not have been useful to JBA. In any case the Applicant did not work at Port Melbourne. He has worked at Geelong sites since 2019. Two permanent employees who worked at the Port Melbourne workshop had already been allocated useful tasks. There was nothing for the Applicant to do there.
There was also no work at Campbellfied. JBA already employs a workshop coordinator there. In any case, it would not have been possible for the Applicant to get to Campbellfield from Port Melbourne before he was due to commence industrial action. The suggestion was nonsense.
I also reject that suggestion that the Applicant could have attended to the maintenance, repair and cleaning of cars. That was not his job. Finally, for the reasons explained by JBA it would not have been appropriate to replace casuals with the Applicant.
Consequently, I prefer the evidence of JBA about why the work proposed by the Applicant would not have been useful. There was nothing that the employees could have done which would have carried a net benefit to the business. I reject the Applicant’s evidence about the alternative duties that he could have performed.
I find that the applicant could not have been usefully employed by the Respondent on 24 and 25 March 2022.
Question 2. If he could not have been usefully employed, was the lack of useful employment “because of” one or more of the permissible reasons listed in clause 13 of the Award?
This matter was not hotly contested. The Applicant himself recognised that JBA was entitled to rely on Borals refusal to have work done on the Geelong Site on 24 and 25 March to justify standing down the employees.[84]
From March 2021 the parties have engaged in enterprise bargaining. In February 2022, a protection action ballot authorised the Applicant and other AMWU members to take protected industrial action. Boral’s decision to declare 24 and 25 March 2022 as non-working days was a result of the planned industrial action to occur in the afternoon of those days. It can be said that, therefore, JBA has indirectly caused the stand down. However, I reject the notion that indirect causality makes JBA responsible.
Borals decision to declare the days as non-working not only meant that the Geelong Site Workers were left idle, but also that JBA lost all the revenue it was to receive from Boral. The Respondent sought to minimise its losses and did so by standing down the Geelong Site Workers. The stand downs were a natural consequence of Borals refusal to have work done.
I reject the Applicant’s suggestion that there was any suspicious behaviour on the part of the Respondent. Boral only notified the Respondent that 24 and 25 March 2022 were non-working days at 5:00 pm on 23 March. The Respondent acted promptly and notified the Geelong Site Workers at 5:26 pm that they were stood down. I decline the Applicant’s invitation to find that JBA contributed to the cessation of productive work. It did not. The co-contributor to the stoppage was in fact the AMWU. It organised industrial action that let to Boral declaring the relevant days as non-productive.
Consequently, I find that the lack of useful employment was because of one of the permissible reasons listed in clause 13 of the Award, namely, that there was a stoppage of work for which JBA was not responsible.
“For any day”
Finally, for completeness, the parties referred to the words “for any day” in the Award stand down term and made submissions on whether they allowed for stand downs that did not extend for the whole day. However, because the matter has been dealt with by me answering questions 1 and 2 I do not need to decide between the competing contentions of the parties about the meaning of “for any day”.
Mr Pantalleresco’s application for a remedy in the form of an order requiring an 8-hour re-crediting of the Applicant’s RDO balance is dismissed.
COMMISSIONER
Appearances:
Mr B. Terzic for the Applicant
Mr S. Amendola for the Respondent
Hearing details:
2022
Melbourne
2 June
[1] Court Book p 120.
[2] Court Book p 119.
[3] Court Book p 117.
[4] Transcript PN393.
[5] [2017] FWCA 5030, [4].
[6] Ibid, [4].
[7] [2021] FWCA 797.
[8] Clause 5 of the Agreement.
[9] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 75.
[10] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 166.
[11] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 75.
[12] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 167.
[13] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 76.
[14] Ibid.
[15] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 167.
[16] Ibid.
[17] Ibid, p 166.
[18] Ibid.
[19] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 78.
[20] Ibid.
[21] Ibid.
[22] Ibid, 79.
[23] PR737063.
[24] Attachment D
[25] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 167.
[26] Ibid.
[27] Attachment H.
[28] JS-1.
[29] Witness Statement of Jose Sorto (Exhibit 19), at Court Book p 147.
[30] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 169.
[31] Ibid.
[32] Ibid, 170..
[33] Attachment J.
[34] Attachment K.
[35] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 80.
[36] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 172.
[37] Ibid.
[38] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 81.
[39] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 174.
[40] Ibid.
[41] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 81.
[42] Court Book p 120.
[43] Court Book p 119.
[44] Court Book p 117.
[45] Court Book p 117.
[46] Attachment M.
[47] [2014] FWCFB 7447 (‘Golden Cockerel’).
[48] Ibid [41].
[49] [2017] FWCFB 3005 (‘Berri’).
[50] (2005) 222 CLR 241.
[51] Ibid 246.
[52] Berri (n 25) 10, [41] quoting Amcor Limited v CFMEU (2005) 222 CLR 241, 246 (Gleeson CJ, McHugh J); 262 (Kirby J) 262.
[53] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355,382 per (McHugh, Gummow, Kirby and Jayne JJ).
[54] [2017] FWCFB 1621 at [21].
[55] Kucks v CSR Limited (1996) 66 IR 182 at 184.
[56] City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440; See in general Golden Cockerel (n 23) at [19]–[22].
[57] [2006] FCA 616.
[58] Ibid at [26].
[59] [2015] FCAFC 142.
[60] Ibid [108].
[61] NTEU v La Trobe University [2015] FCAFC 142 [109] (White J).
[62] (2009) 188 IR 297, [19]-[22].
[63] (1982) 149 CLR 337.
[64] Ibid 352.
[65] Ibid.
[66] Ibid.
[67] (1996) 66 IR 182, 184.
[68] [2017] FCA 346, [29].
[69] See Howard Smith and Co Ltd v Verawa (1907) 5 CLR 68, 78; Farmer v Hanon (1919) 26 CLR 183, 197 and White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266, 275; 281.
[70] Administration of Papua New Guinea v Daera (1973) 130 CLR 353, 446; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 348.
[71] (2008) 251 ALR 322, [35]( Gummow, Hayne and Kiefel JJ); [163] (Heydon J).
[72] [2009] NSWCA 407, [319] (Allsop P).
[73] Ibid [330].
[74] (1994) 36 NSWLR 290, 304.
[75] Ibid 312.
[76] Ibid.
[77] (1978) 95 DLR (3d) 242, 262.
[78] Berri (n 23) 22–23, [114].
[79] [2021] FWC 6535.
[80] (1971) 17 FLR 33.
[81] Ibid at 334.
[82] [2021] FWC 6535 at 48.
[83] Ibid at 50.
[84] Court Book p 73.
Printed by authority of the Commonwealth Government Printer
<PR742784>
1